Arkansas Game & Fish Commission v. United States , 133 S. Ct. 511 ( 2012 )

(Slip Opinion) OCTOBER TERM, 2012 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
ARKANSAS GAME AND FISH COMMISSION v.
UNITED STATES
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE FEDERAL CIRCUIT
No. 11–597. Argued October 3, 2012—Decided December 4, 2012
Petitioner, Arkansas Game and Fish Commission (Commission), owns
and manages the Dave Donaldson Black River Wildlife Management
Area (Management Area or Area), which comprises 23,000 acres
along the Black River that are forested with multiple hardwood oak
species and serve as a venue for recreation and hunting. In 1948, the
U. S. Army Corps of Engineers (Corps) constructed the Clearwater
Dam (Dam) upstream from the Management Area and adopted a
plan known as the Water Control Manual (Manual), which sets sea-
sonally varying rates for the release of water from the Dam. Periodi-
cally from 1993 until 2000, the Corps, at the request of farmers, au-
thorized deviations from the Manual that extended flooding into the
Management Area’s peak timber growing season. The Commission
objected to the deviations on the ground that they adversely impacted
the Management Area, and opposed the Corps’ proposal to make the
temporary deviations part of the Manual’s permanent water-release
plan. After testing the effect of the deviations, the Corps abandoned
the proposed Manual revision and ceased its temporary deviations.
The Commission sued the United States, alleging that the tempo-
rary deviations constituted a taking of property that entitled the
Commission to compensation. The Commission maintained that the
deviations caused sustained flooding during tree-growing season, and
that the cumulative impact of the flooding caused the destruction of
timber in the Area and a substantial change in the character of the
terrain, necessitating costly reclamation measures. The Court of
Federal Claims’ judgment in favor of the Commission was reversed
by the Federal Circuit. The Court of Appeals acknowledged that
temporary government action may give rise to a takings claim if
2 ARKANSAS GAME AND FISH COMM’N v. UNITED STATES
Syllabus
permanent action of the same character would constitute a taking. It
held, however, that government-induced flooding can give rise to a
taking claim only if the flooding is “permanent or inevitably recur-
ring.” The Federal Circuit understood this conclusion to be dictated
by Sanguinetti v. United States, 264 U. S. 146, 150, and United States
v. Cress, 243 U. S. 316, 328.
Held: Government-induced flooding temporary in duration gains no
automatic exemption from Takings Clause inspection. Pp. 6–15.
(a) No magic formula enables a court to judge, in every case,
whether a given government interference with property is a taking.
This Court has drawn some bright lines, but in the main, takings
claims turn on situation-specific factual inquiries. See Penn Central
Transp. Co. v. New York City, 438 U. S. 104, 124.
As to the question whether temporary flooding can ever give rise to
a takings claim, this Court has ruled that government-induced flood-
ing, Pumpelly v. Green Bay Co., 13 Wall. 166, and seasonally recur-
ring flooding, Cress, 243 U. S., at 328, can constitute takings. The
Court has also ruled that takings temporary in duration can be com-
pensable. E.g., United States v. Causby, 328 U. S. 256, 266. This
Court’s precedent thus indicates that government-induced flooding of
limited duration may be compensable. None of the Court’s decisions
authorizes a blanket temporary-flooding exception to the Court’s Tak-
ings Clause jurisprudence, and the Court declines to create such an
exception in this case. Pp. 6–9.
(b) In advocating a temporary-flooding exception, the Government
relies primarily on Sanguinetti, 264 U. S. 146, which held that no
taking occurred when a government-constructed canal overflowed on-
to the claimant’s land. In its opinion, the Court summarized prior
flooding cases as standing for the proposition that “in order to create
an enforceable liability against the Government, it is, at least, neces-
sary that the overflow be the direct result of the structure, and con-
stitute an actual, permanent invasion of the land.” Id., at 149. The
Government urges the Court to extract from the quoted words a de-
finitive rule that there can be no temporary taking caused by floods.
But the Court does not read the passing reference to permanence in
Sanguinetti as having done so much work. Sanguinetti was decided
in 1924, well before the World War II-era cases and First English
Evangelical Lutheran Church of Glendale v. County of Los Angeles,
482 U. S. 304, in which the Court first homed in on the matter of
compensation for temporary takings. There is no suggestion in San-
guinetti that flooding cases should be set apart from the mine run of
takings claims.
The Court thus finds no solid grounding in precedent for setting
flooding apart from other government intrusions on property. And
Cite as: 568 U. S. ____ (2012) 3
Syllabus
the Government has presented no other persuasive reason to do so.
Its primary argument is that reversing the Federal Circuit’s decision
risks disrupting public works dedicated to flood control. While the
public interests here are important, they are not categorically differ-
ent from the interests at stake in myriad other Takings Clause cases
in which this Court has rejected similar arguments when deployed to
urge blanket exemptions from the Fifth Amendment’s instruction.
The Government argues in the alternative that damage to down-
stream property, however foreseeable, is collateral or incidental; it is
not aimed at any particular landowner and therefore is not compen-
sable under the Takings Clause. The Court expresses no opinion on
this claim, which was first tendered at oral argument and not aired
in the courts below. For the same reason, the Court declines to ad-
dress the bearing, if any, of Arkansas water-rights law on this case.
Pp. 9–13.
(c) When regulation or temporary physical invasion by government
interferes with private property, time is a factor in determining the
existence vel non of a compensable taking. See, e.g., Loretto v. Tele-
prompter Manhattan CATV Corp., 458 U. S. 419, 435, n. 12. Also rel-
evant to the takings inquiry is the degree to which the invasion is in-
tended or is the foreseeable result of authorized government action.
See, e.g., John Horstmann Co. v. United States, 257 U. S. 138, 146.
So, too, are the character of the land at issue and the owner’s “rea-
sonable investment-backed expectations” regarding the land’s use,
Palazzolo v. Rhode Island, 533 U. S. 606, 618, as well as the severity
of the interference, see, e.g., Penn Central, 438 U. S., at 130–131. In
concluding that the flooding was foreseeable in this case, the Court of
Federal Claims noted the Commission’s repeated complaints to the
Corps about the destructive impact of the successive planned devia-
tions and determined that the interference with the Commission’s
property was severe. The Government, however, challenged several
of the trial court’s factfindings, including those relating to causation,
foreseeability, substantiality, and the amount of damages. Because
the Federal Circuit rested its decision entirely on the temporary du-
ration of the flooding, it did not address those challenges, which re-
main open for consideration on remand. Pp. 14–15.
637 F. 3d 1366, reversed and remanded.
GINSBURG, J., delivered the opinion of the Court, in which all other
Members joined, except KAGAN, J., who took no part in the considera-
tion or decision of the case.
Cite as: 568 U. S. ____ (2012) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 11–597
_________________
ARKANSAS GAME AND FISH COMMISSION,
PETITIONER v. UNITED STATES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FEDERAL CIRCUIT
[December 4, 2012]
JUSTICE GINSBURG delivered the opinion of the Court.
Periodically from 1993 until 2000, the U. S. Army Corps
of Engineers (Corps) authorized flooding that extended
into the peak growing season for timber on forest land
owned and managed by petitioner, Arkansas Game and
Fish Commission (Commission). Cumulative in effect, the
repeated flooding damaged or destroyed more than 18
million board feet of timber and disrupted the ordinary
use and enjoyment of the Commission’s property. The
Commission sought compensation from the United States
pursuant to the Fifth Amendment’s instruction: “[N]or
shall private property be taken for public use, without
just compensation.” The question presented is whether a
taking may occur, within the meaning of the Takings
Clause, when government-induced flood invasions, al-
though repetitive, are temporary.
Ordinarily, this Court’s decisions confirm, if government
action would qualify as a taking when permanently con-
tinued, temporary actions of the same character may also
qualify as a taking. In the instant case, the parties and
2 ARKANSAS GAME AND FISH COMM’N v. UNITED STATES
Opinion of the Court
the courts below divided on the appropriate classification
of temporary flooding. Reversing the judgment of the
Court of Federal Claims, which awarded compensation to
the Commission, the Federal Circuit held, 2 to 1, that
compensation may be sought only when flooding is “a per-
manent or inevitably recurring condition, rather than an
inherently temporary situation.” 637 F. 3d 1366, 1378
(2011). We disagree and conclude that recurrent flood-
ings, even if of finite duration, are not categorically ex-
empt from Takings Clause liability.
I
A
The Commission owns the Dave Donaldson Black River
Wildlife Management Area (Management Area or Area),
which comprises 23,000 acres along both banks of the
Black River in northeast Arkansas. The Management
Area is forested with multiple hardwood timber species
that support a variety of wildlife habitats. The Commis-
sion operates the Management Area as a wildlife and
hunting preserve, and also uses it as a timber resource,
conducting regular harvests of timber as part of its forest-
management efforts. Three types of hardwood oak spe-
cies—nuttall, overcup, and willow—account for 80 percent
of the trees in the Management Area. The presence of
these hardwood oaks is essential to the Area’s character as
a habitat for migratory birds and as a venue for recreation
and hunting.
The Clearwater Dam (Dam) is located 115 miles up-
stream from the Management Area. The Corps constructed
the Dam in 1948, and shortly thereafter adopted a plan
known as the Water Control Manual (Manual) to deter-
mine the rates at which water would be released from the
Dam. The Manual sets seasonally varying release rates,
but permits planned deviations from the prescribed rates
for agricultural, recreational, and other purposes.
Cite as: 568 U. S. ____ (2012) 3
Opinion of the Court
In 1993, the Corps approved a planned deviation in
response to requests from farmers. From September to
December 1993, the Corps released water from the Dam at
a slower rate than usual, providing downstream farmers
with a longer harvest time. As a result, more water than
usual accumulated in Clearwater Lake behind the Dam.
To reduce the accumulation, the Corps extended the pe-
riod in which a high amount of water would be released.
The Commission maintained this extension yielded down-
stream flooding in the Management Area, above historical
norms, during the tree-growing season, which runs from
April to October. If the Corps had released the water
more rapidly in the fall of 1993, in accordance with the
Manual and with past practice, there would have been
short-term waves of flooding which would have receded
quickly. The lower rate of release in the fall, however,
extended the period of flooding well into the following
spring and summer. While the deviation benefited farm-
ers, it interfered with the Management Area’s tree-
growing season.
The Corps adopted similar deviations each year from
1994 through 2000. The record indicates that the decision
to deviate from the Manual was made independently in
each year and that the amount of deviation varied over the
span of years. Nevertheless, the result was an unbroken
string of annual deviations from the Manual. Each devia-
tion lowered the rate at which water was released during
the fall, which necessitated extension of the release period
into the following spring and summer. During this span of
years the Corps proposed Manual revisions that would
have made its temporary deviations part of the permanent
water-release plan. On multiple occasions between 1993
and 2000, the Commission objected to the temporary
deviations and opposed any permanent revision to the
Manual, on the ground that the departures from the tradi-
tional water-release plan adversely impacted the Man-
4 ARKANSAS GAME AND FISH COMM’N v. UNITED STATES
Opinion of the Court
agement Area. Ultimately, the Corps tested the effect of
the deviations on the Management Area. It thereupon
abandoned the proposal to permanently revise the Manual
and, in 2001, ceased its temporary deviations.
B
In 2005, the Commission filed the instant lawsuit
against the United States, claiming that the temporary
deviations from the Manual constituted a taking of prop-
erty that entitled the Commission to compensation. The
Commission maintained that the deviations caused sus-
tained flooding of its land during the tree-growing season.
The cumulative impact of this flooding over a six-year
period between 1993 and 1999, the Commission alleged,
resulted in the destruction of timber in the Management
Area and a substantial change in the character of the
terrain, which necessitated costly reclamation measures.
Following a trial, the Court of Federal Claims ruled in
favor of the Commission and issued an opinion and order
containing detailed findings of fact. 87 Fed. Cl. 594(2009).
The Court of Federal Claims found that the forests in
the Management Area were healthy and flourishing before
the flooding that occurred in the 1990’s, and that the
forests had been sustainably managed for decades under
the water-release plan contained in the Manual. Id., at
631. It further found that the Commission repeatedly
objected to the deviations from the Manual and alerted the
Corps to the detrimental effect the longer period of flood-
ing would have on the hardwood timber in the Manage-
ment Area. Id., at 604.
As found by the Court of Federal Claims, the flooding
caused by the deviations contrasted markedly with histor-
ical flooding patterns. Between 1949 and 1992, the river
level near the Management Area reached six feet an aver-
age of 64.7 days per year during the growing season; the
number of such days had been even lower on average
Cite as: 568 U. S. ____ (2012) 5
Opinion of the Court
before the Clearwater Dam was built. Between 1993 and
1999, however, the river reached the same level an aver-
age of 91.14 days per year, an increase of more than 40
percent over the historic average. Although the Manage-
ment Area lies in a floodplain, in no previously recorded
time span did comparable flooding patterns occur. Id., at
607–608. Evidence at trial indicated that half of the nut-
tall oaks in the Management Area were saturated with
water when the river level was at six feet, id., at 608; the
evidence further indicated that the saturation of the soil
around the trees’ root systems could persist for weeks even
after the flooding had receded. Id., at 627.
The court concluded that the Corps’ deviations caused
six consecutive years of substantially increased flooding,
which constituted an appropriation of the Commission’s
property, albeit a temporary rather than a permanent
one. Important to this conclusion, the court emphasized
the deviations’ cumulative effect. The trees were subject
to prolonged periods of flooding year after year, which
reduced the oxygen level in the soil and considerably weak-
ened the trees’ root systems. The repeated annual flood-
ing for six years altered the character of the property to
a much greater extent than would have been shown if
the harm caused by one year of flooding were simply multi-
plied by six. When a moderate drought occurred in 1999
and 2000, the trees did not have the root systems neces-
sary to sustain themselves; the result, in the court’s
words, was “catastrophic mortality.” Id., at 632. More
than 18 million board feet of timber were destroyed or
degraded. Id., at 638–640.
This damage altered the character of the Management
Area. The destruction of the trees led to the invasion of
undesirable plant species, making natural regeneration of
the forests improbable in the absence of reclamation ef-
forts. Id., at 643. To determine the measure of just
compensation, the Court of Federal Claims calculated the
6 ARKANSAS GAME AND FISH COMM’N v. UNITED STATES
Opinion of the Court
value of the lost timber and the projected cost of the rec-
lamation and awarded the Commission $5.7 million.
The Federal Circuit reversed. It acknowledged that in
general, temporary government action may give rise to a
takings claim if permanent action of the same character
would constitute a taking. But it held that “cases involv-
ing flooding and [flowage] easements are different.” 637
F. 3d, at 1374. Government-induced flooding can give rise
to a taking claim, the Federal Circuit concluded, only if
the flooding is “permanent or inevitably recurring.” Id.,
at 1378. The Court of Appeals understood this conclusion
to be dictated by this Court’s decisions in Sanguinetti v.
United States, 264 U. S. 146, 150 (1924), and United
States v. Cress, 243 U. S. 316, 328 (1917). We granted
certiorari to resolve the question whether government
actions that cause repeated floodings must be permanent
or inevitably recurring to constitute a taking of property.
566 U. S. ___ (2012).
II
The Takings Clause is “designed to bar Government
from forcing some people alone to bear public burdens
which, in all fairness and justice, should be borne by the
public as a whole.” Armstrong v. United States, 364 U. S.
40, 49 (1960). See also First English Evangelical Lutheran
Church of Glendale v. County of Los Angeles, 482 U. S.
304, 318–319 (1987); Penn Central Transp. Co. v. New
York City, 438 U. S. 104, 123–125 (1978). And “[w]hen the
government physically takes possession of an interest in
property for some public purpose, it has a categorical duty
to compensate the former owner.” Tahoe-Sierra Preserva-
tion Council, Inc. v. Tahoe Regional Planning Agency,
535 U. S. 302, 322 (2002) (citing United States v. Pewee
Coal Co., 341 U. S. 114, 115 (1951)). These guides are
fundamental in our Takings Clause jurisprudence. We have
recognized, however, that no magic formula enables a
Cite as: 568 U. S. ____ (2012) 7
Opinion of the Court
court to judge, in every case, whether a given government
interference with property is a taking. In view of the
nearly infinite variety of ways in which government ac-
tions or regulations can affect property interests, the
Court has recognized few invariable rules in this area.
True, we have drawn some bright lines, notably, the
rule that a permanent physical occupation of property
authorized by government is a taking. Loretto v. Tele-
prompter Manhattan CATV Corp., 458 U. S. 419, 426
(1982). So, too, is a regulation that permanently requires
a property owner to sacrifice all economically beneficial
uses of his or her land. Lucas v. South Carolina Coastal
Council, 505 U. S. 1003, 1019 (1992). But aside from the
cases attended by rules of this order, most takings claims
turn on situation-specific factual inquiries. See Penn
Central, 438 U. S., at 124. With this in mind, we turn to
the question presented here—whether temporary flooding
can ever give rise to a takings claim.
The Court first ruled that government-induced flooding
can constitute a taking in Pumpelly v. Green Bay Co., 13
Wall. 166 (1872). The Wisconsin Legislature had author-
ized the defendant to build a dam which led to the creation
of a lake, permanently submerging the plaintiff’s land.
The defendant argued that the land had not been taken
because the government did not exercise the right of emi-
nent domain to acquire title to the affected property.
Moreover, the defendant urged, the damage was merely
“a consequential result” of the dam’s construction near the
plaintiff’s property. Id., at 177. Rejecting that crabbed
reading of the Takings Clause, the Court held that “where
real estate is actually invaded by superinduced additions
of water, earth, sand, or other material . . . so as to effec-
tually destroy or impair its usefulness, it is a taking,
within the meaning of the Constitution.” Id., at 181.
Following Pumpelly, the Court recognized that season-
ally recurring flooding could constitute a taking. United
8 ARKANSAS GAME AND FISH COMM’N v. UNITED STATES
Opinion of the Court
States v. Cress, 243 U. S. 316 (1917), involved the Gov-
ernment’s construction of a lock and dam, which subjected
the plaintiff’s land to “intermittent but inevitably recur-
ring overflows.” Id., at 328. The Court held that the
regularly recurring flooding gave rise to a takings claim
no less valid than the claim of an owner whose land was
continuously kept under water. Id., at 328–329.
Furthermore, our decisions confirm that takings tem-
porary in duration can be compensable. This principle
was solidly established in the World War II era, when
“[c]ondemnation for indefinite periods of occupancy [took
hold as] a practical response to the uncertainties of the
Government’s needs in wartime.” United States v. West-
inghouse Elec. & Mfg. Co., 339 U. S. 261, 267 (1950). In
support of the war effort, the Government took temporary
possession of many properties. These exercises of gov-
ernment authority, the Court recognized, qualified as
compensable temporary takings. See Pewee Coal Co., 341
U. S. 114; Kimball Laundry Co. v. United States, 338 U. S.
1 (1949); United States v. General Motors Corp., 323 U. S.
373 (1945). Notably in relation to the question before us,
the takings claims approved in these cases were not con-
fined to instances in which the Government took outright
physical possession of the property involved. A temporary
takings claim could be maintained as well when govern-
ment action occurring outside the property gave rise to “a
direct and immediate interference with the enjoyment and
use of the land.” United States v. Causby, 328 U. S.
256, 266 (1946) (frequent overflights from a nearby airport
resulted in a taking, for the flights deprived the property
owner of the customary use of his property as a chicken
farm); cf. United States v. Dickinson, 331 U. S. 745, 751
(1947) (flooding of claimant’s land was a taking even
though claimant successfully “reclaimed most of his land
which the Government originally took by flooding”).
Ever since, we have rejected the argument that govern-
Cite as: 568 U. S. ____ (2012) 9
Opinion of the Court
ment action must be permanent to qualify as a taking.
Once the government’s actions have worked a taking of
property, “no subsequent action by the government can re-
lieve it of the duty to provide compensation for the pe-
riod during which the taking was effective.” First English,
482 U. S., at 321. See also Tahoe-Sierra, 535 U. S., at 337(“[W]e do not hold that the temporary nature of a land-use
restriction precludes finding that it effects a taking; we
simply recognize that it should not be given exclusive
significance one way or the other.”).
Because government-induced flooding can constitute a
taking of property, and because a taking need not be
permanent to be compensable, our precedent indicates
that government-induced flooding of limited duration may
be compensable. No decision of this Court authorizes
a blanket temporary-flooding exception to our Takings
Clause jurisprudence, and we decline to create such an
exception in this case.
III
In advocating a temporary-flooding exception, the Gov-
ernment relies primarily on Sanguinetti, 264 U. S. 146.
That case involved a canal constructed by the Government
connecting a slough and a river. The claimant’s land was
positioned between the slough and the river above the
canal. The year after the canal’s construction, a “flood of
unprecedented severity” caused the canal to overflow onto
the claimant’s land; less severe flooding and overflow
occurred in later years. Id., at 147.
The Court held there was no taking on these facts. This
outcome rested on settled principles of foreseeability and
causation. The Court emphasized that the Government
did not intend to flood the land or have “any reason to
expect that such [a] result would follow” from construction
of the canal. Id., at 148. Moreover, the property was
subject to seasonal flooding prior to the construction of the
10 ARKANSAS GAME AND FISH COMM’N v. UNITED STATES
Opinion of the Court
canal, and the landowner failed to show a causal connec-
tion between the canal and the increased flooding, which
may well have been occasioned by changes in weather
patterns. See id., at 149 (characterizing the causal rela-
tionship asserted by the landowner as “purely conjec-
tural”). These case-specific features were more than
sufficient to dispose of the property owner’s claim.
In the course of the Sanguinetti decision, however, the
Court summarized prior flooding cases as standing for the
proposition that “in order to create an enforceable liability
against the Government, it is, at least, necessary that the
overflow be the direct result of the structure, and consti-
tute an actual, permanent invasion of the land.” Ibid.The Government would have us extract from this state-
ment a definitive rule that there can be no temporary
taking caused by floods.
We do not read so much into the word “permanent” as it
appears in a nondispositive sentence in Sanguinetti. That
case, we note, was decided in 1924, well before the World
War II-era cases and First English, in which the Court
first homed in on the matter of compensation for tempo-
rary takings. That time factor, we think, renders under-
standable the Court’s passing reference to permanence. If
the Court indeed meant to express a general limitation on
the Takings Clause, that limitation has been superseded
by subsequent developments in our jurisprudence.
There is certainly no suggestion in Sanguinetti that
flooding cases should be set apart from the mine run of
takings claims. The sentence in question was composed to
summarize the flooding cases the Court had encountered
up to that point, which had unexceptionally involved
permanent, rather than temporary, government-induced
flooding. 264 U. S., at 149. See Cress, 243 U. S., at 328;
United States v. Lynah, 188 U. S. 445, 469 (1903). But as
just explained, no distinction between permanent and
temporary flooding was material to the result in San-
Cite as: 568 U. S. ____ (2012) 11
Opinion of the Court
guinetti. We resist reading a single sentence unnecessary
to the decision as having done so much work. In this re-
gard, we recall Chief Justice Marshall’s sage observation
that “general expressions, in every opinion, are to be taken
in connection with the case in which those expressions are
used. If they go beyond the case, they may be respected,
but ought not to control the judgment in a subsequent suit
when the very point is presented for decision.” Cohens v.
Virginia, 6 Wheat. 264, 399 (1821).
The Government also asserts that the Court in Loretto
interpreted Sanguinetti the same way the Federal Circuit
did in this case. That assertion bears careful inspection.
A section of the Court’s opinion in Loretto discussing
permanent physical occupations parenthetically quotes
Sanguinetti’s statement that flooding is a taking if it
constitutes an “actual, permanent invasion of the land.”
458 U. S., at 428. But the first rule of case law as well as
statutory interpretation is: Read on. Later in the Loretto
opinion, the Court clarified that it scarcely intended to
adopt a “flooding-is-different” rule by the obscure means of
quoting parenthetically a fragment from a 1924 opinion.
The Court distinguished permanent physical occupations
from temporary invasions of property, expressly including
flooding cases, and said that “temporary limitations are
subject to a more complex balancing process to determine
whether they are a taking.” Id., at 435, n. 12.
There is thus no solid grounding in precedent for set-
ting flooding apart from all other government intrusions on
property. And the Government has presented no other
persuasive reason to do so. Its primary argument is of the
in for a penny, in for a pound genre: reversing the decision
below, the Government worries, risks disruption of pub-
lic works dedicated to flood control. “[E]very passing
flood attributable to the government’s operation of a flood-
control project, no matter how brief,” the Government
hypothesizes, might qualify as a compensable taking.
12 ARKANSAS GAME AND FISH COMM’N v. UNITED STATES
Opinion of the Court
Brief for United States 29. To reject a categorical bar to
temporary-flooding takings claims, however, is scarcely
to credit all, or even many, such claims. It is of course in-
cumbent on courts to weigh carefully the relevant factors
and circumstances in each case, as instructed by our deci-
sions. See infra, at 14.
The slippery slope argument, we note, is hardly novel or
unique to flooding cases. Time and again in Takings
Clause cases, the Court has heard the prophecy that rec-
ognizing a just compensation claim would unduly impede
the government’s ability to act in the public interest.
Causby, 328 U. S., at 275 (Black, J., dissenting); Loretto,
458 U. S., at 455 (Blackmun, J., dissenting). We have
rejected this argument when deployed to urge blanket
exemptions from the Fifth Amendment’s instruction.
While we recognize the importance of the public interests
the Government advances in this case, we do not see them
as categorically different from the interests at stake in
myriad other Takings Clause cases. The sky did not fall
after Causby, and today’s modest decision augurs no del-
uge of takings liability.
Tellingly, the Government qualifies its defense of the
Federal Circuit’s exclusion of flood invasions from tempo-
rary takings analysis. It sensibly acknowledges that a
taking might be found where there is a “sufficiently pro-
longed series of nominally temporary but substantively
identical deviations.” Brief for United States 21. This
concession is in some tension with the categorical rule
adopted by the Court of Appeals. Indeed, once it is recog-
nized that at least some repeated nonpermanent flooding
can amount to a taking of property, the question presented
to us has been essentially answered. Flooding cases, like
other takings cases, should be assessed with reference
to the “particular circumstances of each case,” and not by
resorting to blanket exclusionary rules. United States v.
Central Eureka Mining Co., 357 U. S. 155, 168 (1958)
Cite as: 568 U. S. ____ (2012) 13
Opinion of the Court
(citing Pennsylvania Coal Co. v. Mahon, 260 U. S. 393, 416
(1922)). See Penn Central, 438 U. S., at 124.
At oral argument, the Government tendered a different
justification for the Federal Circuit’s judgment, one not
aired in the courts below, and barely hinted at in the brief
the Government filed in this Court: Whether the damage
is permanent or temporary, damage to downstream prop-
erty, however foreseeable, is collateral or incidental; it is
not aimed at any particular landowner and therefore does
not qualify as an occupation compensable under the Tak-
ings Clause. Tr. of Oral Arg. 30–39; Brief for United
States 26–27. “[M]indful that we are a court of review,
not of first view,” Cutter v. Wilkinson, 544 U. S. 709,
718, n. 7 (2005), we express no opinion on the proposed
upstream/downstream distinction and confine our opinion
to the issue explored and decided by the Federal Circuit.
For the same reason, we are not equipped to address the
bearing, if any, of Arkansas water-rights law on this case.1
The determination whether a taking has occurred includes
consideration of the property owner’s distinct investment-
backed expectations, a matter often informed by the law in
force in the State in which the property is located. Lucas,
505 U. S., at 1027–1029; Phillips v. Washington Legal
Foundation, 524 U. S. 156, 164 (1998). But Arkansas law
was not examined by the Federal Circuit, and therefore is
not properly pursued in this Court. Whether arguments
for an upstream/downstream distinction and on the rele-
vance of Arkansas law have been preserved and, if so,
whether they have merit, are questions appropriately
addressed to the Court of Appeals on remand. See Glover
v. United States, 531 U. S. 198, 205 (2001).
——————
1 Arkansas water law is barely discussed in the parties’ briefs, see
Brief for United States 43, but has been urged at length in a brief
amicus curiae filed by Professors of Law Teaching in the Property Law
and Water Rights Fields.
14 ARKANSAS GAME AND FISH COMM’N v. UNITED STATES
Opinion of the Court
IV
We rule today, simply and only, that government-
induced flooding temporary in duration gains no auto-
matic exemption from Takings Clause inspection. When
regulation or temporary physical invasion by government
interferes with private property, our decisions recognize,
time is indeed a factor in determining the existence
vel non of a compensable taking. See Loretto, 458 U. S.,
at 435, n. 12 (temporary physical invasions should be as-
sessed by case-specific factual inquiry); Tahoe-Sierra, 535
U. S., at 342 (duration of regulatory restriction is a factor
for court to consider); National Bd. of YMCA v. United
States, 395 U. S. 85, 93 (1969) (“temporary, unplanned
occupation” of building by troops under exigent circum-
stances is not a taking).
Also relevant to the takings inquiry is the degree to
which the invasion is intended or is the foreseeable result
of authorized government action. See supra, at 9; John
Horstmann Co. v. United States, 257 U. S. 138, 146 (1921)
(no takings liability when damage caused by government
action could not have been foreseen). See also Ridge Line,
Inc. v. United States, 346 F. 3d 1346, 1355–1356 (CA Fed.
2003); In re Chicago, Milwaukee, St. Paul & Pacific R. Co.,
799 F. 2d 317, 325–326 (CA7 1986). So, too, are the char-
acter of the land at issue and the owner’s “reasonable
investment-backed expectations” regarding the land’s use.
Palazzolo v. Rhode Island, 533 U. S. 606, 618 (2001). For
example, the Management Area lies in a floodplain below
a dam, and had experienced flooding in the past. But the
trial court found the Area had not been exposed to flooding
comparable to the 1990’s accumulations in any other time
span either prior to or after the construction of the Dam.
See supra, at 4–5. Severity of the interference figures in
the calculus as well. See Penn Central, 438 U. S., at 130–
131; Portsmouth Harbor Land & Hotel Co. v. United
States, 260 U. S. 327, 329–330 (1922) (“[W]hile a single act
Cite as: 568 U. S. ____ (2012) 15
Opinion of the Court
may not be enough, a continuance of them in sufficient
number and for a sufficient time may prove [a taking].
Every successive trespass adds to the force of the
evidence.”).
The Court of Federal Claims found that the flooding the
Commission assails was foreseeable. In this regard, the
court noted the Commission’s repeated complaints to
the Corps about the destructive impact of the successive
planned deviations from the Water Control Manual.
Further, the court determined that the interference with
the Commission’s property was severe: The Commission
had been deprived of the customary use of the Manage-
ment Area as a forest and wildlife preserve, as the bottom-
land hardwood forest turned, over time, into a “headwater
swamp.” 87 Fed. Cl., at 610 (internal quotation marks
omitted); see supra, at 5.2
The Government, however, challenged several of the
trial court’s factfindings, including those relating to causa-
tion, foreseeability, substantiality, and the amount of
damages. Because the Federal Circuit rested its decision
entirely on the temporary duration of the flooding, it did
not address those challenges. As earlier noted, see supra,
at 13, preserved issues remain open for consideration on
remand.
* * *
For the reasons stated, the judgment of the Court of
Appeals for the Federal Circuit is reversed, and the case is
remanded for further proceedings consistent with this
opinion.
It is so ordered.
——————
2 The Commission is endeavoring to reclaim the land through a resto-
ration program. The prospect of reclamation, however, does not dis-
qualify a landowner from receipt of just compensation for a taking.
United States v. Dickinson, 331 U. S. 745, 751 (1947).
16 ARKANSAS GAME AND FISH COMM’N v. UNITED STATES
Opinion of the Court
JUSTICE KAGAN took no part in the consideration or
decision of this case.